Post Process

Everything to do with E-discovery & ESI

Why it’s best to be proactive

Posted by rjbiii on December 11, 2007

Two articles (ht: EDD Blog Online) I’ve just read illustrate the need for corporate legal and IT departments to be proactive with respect to the effects of litigation on everyday IT decisions. Mark Apicello has penned an article that suggests your lawyer accompany you when you buy storage hardware:

[Choosing hardware] used to be relatively simple: Research your requirements; conduct a critical analysis of how your current infrastructure meets those needs; and then make Draconian decisions on what to toss, what to buy, and what can be reasonably integrated with new systems.

And when it came to requirements, they traditionally boiled down to balancing capacity and speed. Thanks in large part to regulations such as the FRCP (Federal Rules of Civil Procedures), however, that is no longer the case. These days, choosing a storage system without knowing your company’s legal obligations can cost you dearly.

Hmmm. Considering how well attorneys and technology mix, this thought seems unlikely to make the typical IT pro’s day.

A second article, suggests that IT will be blamed if something goes wrong during e-discovery:

In a survey conducted by Canvasse Opinion among in-house legal departments at 200 of the Fortune 500 companies, 18 percent of the attorneys said that IT has primary responsibility for the development of an ESI [Electronic Storage Information], aka e-discovery, strategy/policy within their organization.

Let me add that FRCP covers only litigation. Government regulations and ensuing investigations would more than likely make an even greater demand on e-discovery than the new Federal Rules, according to Kristin Nimsger, Kroll Ontrack president, the company for whom the survey was conducted.

Okay, well 18 percent is far from a consensus, but this will nevertheless irritate those in IT. Ultimately, the lesson that should be gleaned, is that corporations need to address the issue before major disputes erupt. Being proactive is the key. And, as Ralph Losey might suggest in one of his well-written articles, obtaining a bit of technical competence might not be a bad place to start:

[P]laintiff’s position was basically that since the email was not reasonably accessible to plaintiff’s counsel, it did not have to be produced. After all, he argued, there could be privileged materials in there. Apparently it never occurred to him to hire someone with technical competence to open and read the emails for him.

The court doesn’t usually buy incompetence, and such an argument might very well establish an attorney’s violation of Model Rules requiring diligent and competent representation. Be careful there, buddy.

Again…e-discovery is part of every-day litigation. Follow the example of the Boy Scouts, and be prepared.

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One Response to “Why it’s best to be proactive”

  1. […] Why it’s best to be proactive […]

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